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Instructor
Margie Faulk
On December 19, 2024, the Equal Employment Opportunity Commission ("EEOC") published a new fact sheet titled "Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws." The fact sheet describes some of the technologies employees may be fitted with, the types of information that may be tracked from smart watches that can monitor physical activity, to GPS devices that track location, to devices that detect operator fatigue - and how some uses of that information may violate EEO laws. It also provides the latest illustration of the EEOC's heightened focus on technological developments implicating employment laws and puts employers on notice that technological tools must be assessed to ensure their use does not run afoul of federal employment laws.
EEOC addresses the increasingly common workplace use of "wearables," which it describes as "digital devices embedded with sensors and worn on the body" that can track "bodily movements, collect biometric information, and/or track location." In addition to smartwatches or rings that track the activities of those who wear them, the EEOC also called out environmental or proximity sensors that warn wearers of nearby hazards; smart glasses, and smart helmets that can measure the electrical activity of the brain or detect emotions; exoskeletons and other aids that provide physical support and reduce fatigue; and GPS devices that track location.
Although these devices may provide potential benefits, such as helping workers avoid hazardous conditions for themselves and others, the EEOC warns that the use of the devices may possibly violate federal employment laws.
The new fact sheet reminds employers that employment discrimination laws apply to the collection and use of information from wearables. It also addresses the need for employers to provide reasonable accommodation related to wearables.
Employer-mandated wearables, such as watches, rings, glasses, or helmets that collect information about a worker's health and biometric data may be conducting a "medical examination" as defined by the Americans with Disabilities Act (ADA). If the wearables require employees to provide health information (including in the setting up of the device), the employer may be making "disability-related inquiries." The ADA limits the use of medical examinations or disability-related inquiries by employers and requires employers to safeguard medical records.